Marital property is property acquired during the marriage, except for all property that was received by one spouse as a gift or inheritance, so long as the gift or inheritance was not comingled with marital property (such as in a joint bank account). Also, property may not be marital property if it is the subject of a valid prenuptial agreement or was acquired after the spouses entered into a valid separation agreement. All other property, for the most part is marital property. In some circumstances gray areas may exist; for example, if property is acquired before marriage and later mortgaged after marriage. Also, how the income from separate property should be allocated will vary from state to state. Pensions and professional education as marital property are discussed separately.
“Marital assets and liabilities” include:
1. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them;
2. The enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both;
3. Interspousal gifts during the marriage;
4. All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit sharing, annuity, deferred compensation, and insurance plans and programs; and
5. All real property held by the parties as tenants by the entireties, which acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim for a special equity.
“Non-marital assets and liabilities” include:
1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities.
2. Assets acquired separately by either party by interspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.
3. All income derived from non-marital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset; and
4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred for such assets and liabilities.
Cutoff date for valuation.
The cutoff date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the following: the date the parties enter into a valid separation agreement, another date established by the separation agreement, or the date of the filing of a petition for dissolution of marriage.
The court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:
(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the non-marital assets of the parties.
(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
(j) Any other factors necessary to do equity and justice between the parties.
The Law Offices of Randy Kaye Garvey, P.A. can help you with these and other issues (within our areas of practice) that you may have.